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Judgment
The petitioner-firm, being the plaintiff of a civil suit for partition and separate possession of the plaint schedule property (O.S. No.244 of 2003 in the
Court of XLIII Additional City Civil Judge, Bengaluru), has preferred these writ petitions against the common order dated 11.07.2014, whereby the
Trial Court has decided two applications filed by the parties in the said suit.
By way of its order on I.A. No.8 as moved by the defendant, the Trial Court recalled the order of appointment of a Court Commissioner for recording
the evidence of PW-1.
On the other hand, the Trial Court rejected I.A. No.9 moved by the plaintiff-petitioner for recalling its order dated 29.07.2013, whereby an application
moved on behalf of the plaintiff-petitioner, being I.A. No.7, for recalling the earlier order dated 28.05.2012 holding the suit as abated qua the deceased
defendant No.1, had been dismissed in default.
Learned counsel for the petitioner has moved a memo to the effect that in view of the demise of PW-1, he would not be pressing on the challenge to
the impugned common order dated 11.07.2014, insofar relating to I.A.No.8.
In view of the submissions so made, these petitions are considered only in relation to I.A. No.9.
Having heard the learned counsel for the parties and having perused the material on record, this Court cannot help expressing rather dismay, that the
Trial Court, while dealing with the suit for partition, at all chose to record on 28.05.2012 that the suit stood abated qua the deceased defendant No.1,
despite the fact that two legal representatives of the deceased defendant No.1 were already on record as defendant Nos.2 and 3; and the matter was
pending at the stage where the said defendants were to furnish the names of other legal representatives of the deceased defendant No.1.
It is moreover strange that the Trial Court, despite being made aware of the mistake, by way of an application â€"I.A. No.7 dated 01.07.2013, chose
to dismiss the said application for default and when the other application for recalling of the said default dismissal of I.A.No.7 was moved, chose to
reject the prayer on the premise that engagement of the counsel in another Court hall was not a ground to recall the order passed earlier in dismissal
of the application.
In a comprehension of the order sheets drawn in the matter, it appears that, at every stage, the Trial Court has proceeded in a wholly cursory and
rather superficial manner. In the first place, there could not have been any order treating the suit as abated qua the defendant No.1, when his legal
representatives were already on record as the defendant Nos.2 and 3. Even if such an order came to be passed, when the relevant facts were pointed
out, the Trial Court should have gracefully accepted its mistake and ought to have put the record straight. However, the Trial Court chose to dismiss
the application for default and then refused to reconsider the matter only on hyper-technical grounds. The approach of the Trial Court in this matter
could only be disapproved.
The rules of procedures are meant to sub-serve the cause of justice and are not intended for punishment of parties. Moreover, in the present case, the
initial mistake had been on the part of the Trial Court itself and not on the part of petitioner. In the totality of circumstances, the impugned orders
deserve to be set aside.
Accordingly and in view of the above, the impugned orders dated 11.07.2014 and 29.07.2013 are set aside; the applications filed by the petitioner are
allowed; and the order dated 28.05.2012 holding the suit as abated qua the deceased defendant No.1 is also set aside. The Trial Court would be
expected to proceed with the matter in accordance with law forthwith.
The petition stands allowed accordingly.